24 PROCTOR | June 2015
And so the legal profession developed
in a way which was unique among all the
professions. It was a profession whose
members served in the government of
their community as officers of the judicial
branch of government. It was a profession
whose members acted in the service of the
community from whom they were drawn
to ensure that everyone, including the
government, abided by the law.
The symbiotic relationship between
the judiciary and the legal profession,
the organised mutual dependence of
each side of the profession upon the other,
became the characteristic institution of the
common law system distinguishing it from
developments in continental Europe.
It is not going too far to say that the judiciary,
as the unelected third branch of government,
has come to be accepted as an integral
feature of our democracy because our judges
are formed in a professional background of
training and experience which inculcates
both competence and independence in the
administration of justice. These qualities in
the judiciary are first developed by experience
within the legal profession, and then vouched
for by their colleagues in the profession who
know them better than anyone else.
The idea of independent professionalism
as the ethos which informs the administration
of our system of justice has become ever
more securely established over the centuries.
Edmund Burke captured this idea by
speaking in favour of the “cold neutrality
of an impartial judge”
7
over the idea of the
exercise, by judicial proxy, of the popular
will. Burke’s idea of cold neutrality has its
modern echoes in Sir Owen Dixon’s notion
of strict and complete legalism.
In the United States the claims of democracy,
asserted most vigorously during the
presidency of Andrew Jackson, for a time
seemed to trump the claims of politically
independent professionalism, and led to the
adoption of an elected judiciary in many of
the states. There is then some irony in the
circumstance that the argument for tenured
judges, appointed from the ranks of the legal
profession, was made most eloquently by an
American. Writing in No.78 of The Federalist,8
Alexander Hamilton said:
“It has been frequently remarked, with great
propriety, that a voluminous code of laws
is one of the inconveniences necessarily
connected with the advantages of a free
government. To avoid an arbitrary discretion
in the courts, it is indispensable that they
should be bound down by strict rules and
precedents, which serve to define and point
out their duty in every particular case that
comes before them; and it will readily be
conceived from the variety of controversies
which grow out of the folly and wickedness
of mankind, that the records of those
precedents must unavoidably swell to a very
considerable bulk, and must demand long
and laborious study to acquire a competent
knowledge of them.”
In Australia, no one thinks that an unelected
judiciary is incompatible with government
by the people. In particular, no one has
ever sought to deny the force of Hamilton’s
argument by suggesting that the judiciary
should be elected.
In Australia, no one would now doubt that
it is a responsibility of the organised legal
profession to help ensure that the law is
enforced by those who “know the law of the
realm” and whose professional ethos ensures
that they are “minded to keep it well”.
The legal profession reflects the concerns
and articulates the values of the broader
community and its concerns in relation to
the due administration of justice. In particular,
the profession helps to ensure that politically
neutral professionalism prevails in our system
of justice. Again, it is not going too far to
say that the support of the profession for
appointments to the judiciary is a direct proxy
for the approval of the community at large.
And so the legitimacy and the importance of
the [Queensland Law] Society’s consultative
role in relation to the appointment of judges
should not only be acknowledged, it should
be celebrated.
As should the Society’s role in ensuring
that the idea of a government of laws is
not allowed to become a dead letter. One
obvious example of an issue of current
concern where the Society has an important
role to play is the adequacy of legal aid
services. Legal aid ensures that access
to the courts is available to ensure equality
before the law. And that is the core business
of the profession as well as government.
After securing the safety of the citizenry,
the provision of justice is the first
duty of the state.
Can I mention now a somewhat more
controversial area which also engages
the Society’s responsibility. It concerns
the maintenance of professional standards
of service by lawyers to their clients.
Commercial pressures on lawyers inevitably
affect adherence to professional standards –
and not in a good way.
Late last year, the University of Birmingham
published a study into professional
standards in England and Wales. Nearly
1000 people took part in surveys and
interviews. The study concluded that 16%
of solicitors would accept a suggestion from
a colleague to round up their billing hours
to their advantage – and, of course, to the
consequent disadvantage of the client.
Five per cent of experienced solicitors would
not report misuse of clients’ trust accounts
to the authorities. And good judgment and
honesty were considered to be important
for a good lawyer by only 84% of solicitors.
Professor Hywel Thomas, one of the leaders
of the study, commented:9
“While the legal profession is not in moral
crisis, there is concern within the sector
that not all members of the profession have
an understanding of morally good practice.
With greater competition and recent cuts
to the Legal Aid budget adding to demands
on the moral character of lawyers, this
understanding of ethical practice is more
important than ever. Our research suggests a
requirement for greater focus on ethics within
undergraduate law courses and on senior
role models in informal work-place learning.”
Professor Thomas is right to draw attention
to the problem, but I don’t think that the
answer lies in our undergraduate law courses.
Our law graduates are still as bright-eyed and
idealistic as they ever were. The problem is
one of the commercialisation of legal practice
and of the culture and business models
in which young lawyers find themselves
enmeshed when they enter the workforce.
The cultural problem is manifest in the
managerialist newspeak of practice
managers and business consultants in
which the profession and the courts are
spoken of as “service providers” in the
dispute resolution industry. Litigants are
not citizens and clients, but “consumers”.
The mindset formed by this newspeak allows
the courts to be regarded as subsidiary
agencies of departments of the executive
government; and it encourages lawyers to
see themselves as service providers in an
industry in which they are entitled to get
whatever advantage can be got from the
people to whom they provide their services,
short of actually breaking the law.
The abiding truth, which this misuse of
language obscures, is that lawyers and
courts are not service providers. The courts
are an arm of government. A person who
is sent to jail or ordered to pay an award
of damages is not a customer receiving
a service, but a subject being governed.
That person is being subjected to the law
of the land expressed and applied in its
most immediate and concrete form by
his or her fellow citizens. And it is the
duty of those fellow citizens to do justice
on behalf of the community.
No doubt, all professions are experiencing
challenges to the idea of professional
service; but no other profession shares
responsibility for the government of the
community. If lawyers are incompetent,
or overcharge their clients, or are seen to
exploit their clients in other ways, there is
not just a personal lapse from desirable
standards; there is a failure of governance.
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